Clause 4

Part of Health and Social Care Bill – in a Public Bill Committee at 12:00 pm on 15th January 2008.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 12:00 pm, 15th January 2008

This is one of about five affirmative resolution clauses in the Bill, and it concerns the regulated activity with which we must now be concerned as we move on to consideration of chapter 2. The Committee must effectively have another meta-debate on this clause, if I can put it that way, given that the real meat will be in the regulations. Clause 90 tells us that

“‘prescribed’ means prescribed by regulations” made by the Secretary of State. The clause also defines the geographical scope of regulations—England, mainly.

While both the Commission for Social Care Inspection and the Healthcare Commission cover England alone, as the Minister has just mentioned, the Mental Health Act Commission currently oversees the operation of the Mental Health Act 1983 in England and Wales. It was appropriate for us to raise the point about Wales in the previous debate, because it was covered by schedule 2, but I noted—and it is relevant to the present matter too—that the Minister has undertaken to return to some of the points that were raised, both in writing, which is very helpful, and when we come to debate further clauses and amendments.

The Bill gives the functions of the MHAC pertaining to England to the CQC and those pertaining to Wales to Welsh Ministers. Subsection (2)(a) limits the scope of the CQC to England alone. The Minister has just made a commitment that he will seek to help the Committee as much as he can. What assessment has he made of the division of staff and intellectual property arising from that split? I hope that, as he and his officials are noting the process of these inquiries, the intellectual property rights will also be given proper consideration. They are an asset that is often overlooked but absolutely vital. Coming from a commercial background, I can say that intellectual property rights are often used most of the time in any transfer negotiation by way of friendly or hostile purchase.

Subject to the following provisions of clause 157, the Bill extends to both England and Wales. I hope that the Minister will have checked by the time we reach that clause that there is no conflict in the drafting. I put it no higher than that, but it is certainly worth checking.

Clause 4(2)(a) limits prescribed activities to those connected to health or social care—the definition of which we will debate under clause 5—

“in, or in relation to, England”.

Can the Minister tell the Committee the force of the phrase “in relation to”? As an MP whose constituency has a Welsh border and much of what is rather interestingly called “health tourism” across that border, I am interested in what protection the clause gives to my constituents who are treated and cared for in Wales—often very well, I have to say. Obviously, for many of my constituents, being treated in Wrexham Maelor hospital involves travelling a much shorter distance than would be involved in travelling even to the Countess of Chester hospital in the city of Chester.

What right of appeal, on behalf of my English constituents, does the clause give me, as their representative in the House? I have frequently attempted to ask the Secretary of State for Wales what happens if things go wrong for my constituents in a health or social care setting in Wales. He has immediately referred me to the First Minister of Wales, who has told me that I have no standing with him and he has absolutely no obligation to respond to me, and does not. Therefore, I have no way of representing my constituents through the devolved powers, which in effect create a form of devolved apartheid when it comes to accountability.

What impact will this provision have on NHS patients seeking health care abroad—I am not now talking just about going across borders within the United Kingdom—under the EU’s attempt to open up the health care market? The Minister and all his colleagues will be very conscious of the recent debate that has been had, mainly in the press, because the EU was supposed to publish draft legislation on 20 December just gone, but has delayed it until early 2008, so we are in live time. That is in the light of anger from, among others, our very own British Ministers. We await that publication with bated breath. It will be absolutely germane to this part of the Bill and the way in which the Bill can operate.

The clause also, rightly, prevents the CQC from encroaching on the role of Ofsted in the inspection of children’s services. Ofsted inspects, among others things, children’s homes and residential special schools. Can the Minister confirm that this provision will not impact on the commission’s ability to report on children and young people being treated on adult mental health wards? As he is well aware, that is a scandal that continues to persist under this Government. Given in particular the recent report on learning difficulties services published by the Healthcare Commission, what will he do to encourage close working between the two bodies in terms of service users, providers and individual staff in the sector?

I note the Minister’s genuinely helpful alert to the Committee last Thursday about joint working. He brought our attention to clause 64 and schedule 4. However, my understanding of clause 64 is that it  requires the commission to promote co-ordination of reviews and assessments, not of day-to-day processes. Schedule 4 comes closer to supporting joint working in processes, although it does not require it in the same terms as clause 64. Again, I hope that that provides genuine food for thought for the Minister and his officials, because I suspect that there will be time to think about it before we get there.

In relation to clause 4(3), I hope that the Minister will give us an answer as to why he has decided to enshrine these three aspects explicitly in the Bill. It is not an exclusive definition of “connected with”, but it seems to particularise when the rest is left to more generic definition. What assessment has he made of the division of staff and intellectual property arising from the division of the MHAC? Given that the clause applies to England and Wales, should subsection (2)(a) reflect that? What does “in relation to” mean? Will Ofsted and the CQC work together? Why has he sought to define, although not exclusively, “connected with” in the terms outlined? Those are the questions that I hope he will seek to address as we consider the clause.